It has long been the case that discrimination claims can be brought against individual employees and employers. However, employers’ responsibility for the discriminatory actions of individuals is not just limited to employees carrying out their normal duties.
In Unite the Union v Nailard, the Employment Appeal Tribunal (EAT) found that a union could be held liable for the discriminatory actions of its officials, even if they were not direct employees of it. The officials were the agents of the union.
Two union officials were employed and paid by Heathrow Airports Limited, with whom it was agreed that the representatives could carry out full-time union duties while remaining employed by Heathrow. Ms Nailard, an employee of Unite, complained that the union officials bullied and harassed her. Both union officials accepted the allegations made against them. The employee resigned and claimed constructive dismissal, direct sex discrimination and harassment against the union.
Unite argued in the Employment Tribunal that, since there was no contract for the union officials to personally do the work, then they could not be treated as employees of the union. Consequently, the union could not be held accountable for their actions. However, the tribunal found that the officials were in fact employees of the union, and that the union was liable for their actions. In the alternative, it found that the officials were agents of the union and liability passed. The union appealed.
The EAT overturned the tribunal’s finding, concluding that the representatives were not employed by the union but then relied on the interpretation of s109 of the Equality Act 2010 to establish the degree of liability of the union when it came to the actions of its officials. S109 makes provision for liability of employers and principals in the following terms: “(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.”
The EAT accepted that a union’s liability for the acts of its non-employed representatives will only arise when a discriminatory act has been committed by union officials. These encompass any acts motivated by a protected characteristic such as race, sex, religion, belief, disability, age, sexual orientation and gender reassignment. It should be noted that this list is not exhaustive.
Any discriminatory acts carried out by a person acting as an agent (i.e. a workplace union official) for another person (the principal, in this case the union) with the principal’s authority is treated as having been consented to by the principal. This is regardless of whether the agent’s acts were done with the principal’s knowledge or approval. It does not matter if the union had not specifically authorised the discriminatory conduct (which, of course, they would not).
In the light of the above, trade union officials will now be treated as agents of a union if it is established that their actions amount to acts of discrimination. As a direct consequence, unions become vicariously liable for the agents’ discriminatory acts. The point in this case would likely apply to employers generally where individuals carry out tasks in some capacity (even if not as employee) on behalf of the employer organisation. Employers may wish to consider offering equal opportunities training or at least drawing attention to equal opportunities issues to, for instance, volunteers or agency staff who are regularly used to reduce the risks of a claim being made against them for discrimination.